(PC) Bowell v. Montoya ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JAMES BOWELL, 1:17-cv-00605-NONE-GSA-PC 11 Plaintiff, ORDER STRIKING IMPERMISSIBLE SURREPLY 12 vs. (ECF No. 94.) 13 F. MONTOYA, et al., 14 Defendants. 15 16 I. BACKGROUND 17 James Bowell (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s 19 First Amended Complaint, filed on May 3, 2018, against defendants Montoya and Carter for 20 violation of due process under the Fourteenth Amendment, and against defendants Killmer and 21 Lopez for conspiracy to place Plaintiff at risk of serious harm and for failure to protect Plaintiff 22 under the Eighth Amendment. (ECF No. 16.)1 23 On January 25, 2021, defendants Carter, Killmer, Lopez, and Montoya (“Defendants”) 24 filed a motion for summary judgment. (ECF No. 90.) On February 3, 2021, Plaintiff filed an 25 opposition to the motion. (ECF No. 28.) On February 9, 2021, Defendants filed a reply to 26 Plaintiff’s opposition. (ECF No. 93.) 27 28 1 On October 25, 2018, the court issued an order dismissing all other claims and defendants from this case, for Plaintiff’s failure to state a claim. (ECF No. 20.) 1 On February 25, 2019, Plaintiff filed a second opposition to Defendants’ motion. (ECF 2 No. 30.) The court construes Plaintiff’s second opposition as an impermissible surreply. 3 II. SURREPLY 4 A surreply, or sur-reply, is an additional reply to a motion filed after the motion has 5 already been fully briefed. USLegal.com, http://definitions.uslegal.com/s/sur-reply/ (last visited 6 March 1, 2021). The Local Rules provide for a motion, an opposition, and a reply. Neither the 7 Local Rules nor the Federal Rules provide the right to file a surreply. A district court may allow 8 a surreply to be filed, but only “where a valid reason for such additional briefing exists, such as 9 where the movant raises new arguments in its reply brief.” Hill v. England, 2005 WL 3031136, 10 *1 (E.D.Cal. Nov. 8, 2005). 11 Plaintiff’s second opposition to Defendants’ motion is a surreply because it was filed on 12 February 3, 2021 after Defendant’s motion was fully briefed. The motion for summary judgment 13 was fully briefed and submitted on the record under Local Rule 230(l) on February 9, 2021 when 14 Defendants filed a reply to Plaintiff’s first opposition. (ECF No. 93.) In this case the court 15 neither requested a surreply nor granted a request on the behalf of Plaintiff to file a surreply. 16 Plaintiff has not shown good cause for the court to allow him to file a surreply at this juncture. 17 Therefore, Plaintiff’s surreply shall be stricken from the record.2 18 III. CONCLUSION 19 Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s surreply, filed on 20 February 13, 2019, is STRICKEN from the court’s record. 21 IT IS SO ORDERED. 22 23 Dated: March 2, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 24 25 26 27 2 A document which is ‘stricken’ will not be considered by the Court for any purpose.” 28 (Informational Order, ECF No. 3 at 2 ¶II.A.)